What, exactly, would a judicially-manageable standard under the Elections Clause look like after Moore v. Harper?

Elections Clause

Rick Pildes here at ELB has already commented on the petitioners’ brief in Moore v. Harper, the Legislature Thereof Clause, as a brief that “trades off between” a “strong” interpretation and a “weak” interpretation of the Clause–strong, in that the state constitution cannot ever substantively constrain the state legislature, and weak, in that the state constitution cannot have “vague” provisions interpreted by state courts to constrain the state legislature.

I want to delve into this more. By my count, the petitioners in Moore offer five different conceptualizations of conceiving of the boundaries of the Elections Clause, and amici offer three different approaches. On the one hand, a suite of options may make it possible for the Court to find consensus around such a construction. On the other hand, it is, in my judgment, a deficiency, an inability to coalesce around a manageable standard for the Court.

Continue reading What, exactly, would a judicially-manageable standard under the Elections Clause look like after Moore v. Harper? →
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“The Most Dominant Toxic Election Narratives Online”

election subversion risk, fraudulent fraud squad

NYT:

Ballot mules. Poll watch parties. Groomers.

These topics are now among the most dominant divisive and misleading narratives online about November’s midterm elections, according to researchers and data analytics companies. On Twitter, Facebook, Reddit, Truth Social and other social media sites, some of these narratives have surged in recent months, often accompanied by angry and threatening rhetoric.

The effects of these inflammatory online discussions are being felt in the real world, election officials and voting rights groups said. Voters have flooded some local election offices with misinformed questions about supposedly rigged voting machines, while some people appear befuddled about what pens to use on ballots and whether mail-in ballots are still legal, they said.

“Our voters are angry and confused,” Lisa Marra, elections director in Cochise County, Ariz., told a House committee last month. “They simply don’t know what to believe.”

The most prevalent of these narratives fall into three main categories: continued falsehoods about rampant election fraud; threats of violence and citizen policing of elections; and divisive posts on health and social policies that have become central to political campaigns. Here’s what to know about them.

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“Jury Rules Against Project Veritas in Lawsuit”

chicanery

NYT:

A jury in a federal civil case on Thursday found that Project Veritas, a conservative group known for its deceptive tactics, had violated wiretapping laws and fraudulently misrepresented itself as part of a lengthy sting operation against Democratic political consultants.

The jury awarded the consulting firm, Democracy Partners, $120,000. The decision amounted to a sharp rebuke of the practices that Project Veritas and its founder, James O’Keefe, have relied on. During the trial, lawyers for Project Veritas portrayed the operation as news gathering and its employees as journalists following the facts.

“Hopefully, the decision today will help to discourage Mr. O’Keefe and others from conducting these kind of political spy operations and publishing selectively edited, misleading videos in the future,” Robert Creamer, a co-founder of Democracy Partners, said in a statement after the jury had reached a verdict.

Project Veritas said it would appeal the decision.

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“Arizona GOP secretary of state nominee stands by election conspiracy theories in debate”

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CNN:

Arizona Republican secretary of state nominee Mark Finchem doubled down on the conspiracy theories that he has espoused about the 2020 presidential election in a debate against Democrat Adrian Fontes Thursday night, asserting that the votes in several key Arizona counties should have been “set aside” even though there was no evidence of widespread voter fraud in the 2020 contest.

“There are certain counties that should have been set aside as irredeemably compromised — Maricopa County was one of them. Yuma County was one of them,” the Republican state lawmaker said, echoing claims he made in a February resolution that called for decertifying the 2020 election results in three Arizona counties — even though legal experts say there is no legal mechanism to do so. “We have so many votes outside of the law that it begs the question, what do we do with an election where we have votes that are in the stream, which should not be counted?”

Finchem, a Republican state representative in Arizona, was endorsed by Donald Trump in September of 2021 after becoming one of the most vocal supporters of the former President’s lies about the 2020 presidential election. Trump is supporting a broad array of election deniers vying for office in November as he continues his unrelenting campaign to undermine and subvert the 2020 results.

Finchem is one of at least 11 Republican nominees running for state elections chief who have questioned, rejected or tried to overturn the results of the 2020 election, as CNN’s Daniel Dale chronicled last month — a trend that has alarmed election experts and increasingly drawn the notice of the public.

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“McConnell seeks a Jan. 6 mop-up on his terms”

election subversion risk, electoral college

Politico:

Mitch McConnell opposed conviction in Donald Trump’s second impeachment trial. He may yet help clean up the mess of Jan. 6.

Things are playing out differently in the Senate GOP after only nine House Republicans — all of them retiring from Congress — supported updating a 19th-century law that Trump’s allies sought to manipulate to keep him in power. Even as House GOP leaders whipped against the post-Jan. 6 legislation this week, McConnell has encouraged his members to seek a deal with Democrats and is himself leaning toward backing the effort, according to senators in both parties.

I presume that if we get the bill that was negotiated by the bipartisan group, that he’ll support it,” said Sen. Mitt Romney (R-Utah).

So far, the Kentucky Republican is keeping tight-lipped publicly amid the tension in his party over how to handle a bill directly aimed at Trump’s push to overturn his 2020 election loss, as well as the GOP lawmakers who objected to President Joe Biden’s Electoral College win. In a brief interview this week, McConnell said Congress does “need to fix” the 1887 law known as the Electoral Count Act. “And I’ll have more to say about my feelings about that later.”

He’s likely to reveal his position Tuesday, when the Rules Committee votes on the Senate legislation. McConnell is a member of the panel, alongside Majority Leader Chuck Schumer (D-N.Y.), who supports the effort….

The Rules Committee is scheduled to mark up the bipartisan bill Tuesday and is expected to make changes after receiving feedback from election law experts in August….

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“Secretary of State Races Turn Rowdy During the Homestretch; Democrats are outspending Republicans in Georgia, Michigan, Minnesota and Nevada, where they see their opponents as threats to democracy.”

election subversion risk
NYT: In a normal election year, races for secretary of state are sleepy affairs, and their campaigns struggle for media coverage amid the hurly-burly of more prominent Senate, governor and House contests.This year, however, is anything but normal.Democrats are pouring… Continue reading